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TITLE IX Has a Cross-Examination Crisis. Comments From University Leaders Show Guilt-Presuming Sentiment

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TITLE IX Has a Cross-Examination Crisis. Comments From University Leaders Show Guilt-Presuming Sentiment

The Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Until recently, that lesson had failed to permeate the nation’s Title IX tribunals. Obama-era guidance “strongly” discouraged direct cross-examination between students accused of sexual assault and those making the accusations. Nearly all colleges and universities went further and prevented lawyers or advocates for the accused from asking questions of witnesses. Only in the last few weeks have academic leaders explained in detail why they support denying accused students who face the most serious offense to come before most campus tribunals—sexual assault—the procedural protections associated with cross-examination.

The comments from higher-ed leaders require accepting one assumption: that all, or nearly all, campus allegations are true, and so a system primarily designed to test the veracity of each individual claim is not only unnecessary but counterproductive. This guilt-presuming sentiment veers dangerously close to deeming a college’s educational goals consistent with sacrificing innocent students to pursue a greater good. But as one federal judge has noted, a university’s mission is stymied if, through unfair procedures, the school “ejects innocent students who would otherwise benefit from, and contribute to, its academic environment.”

A federal court ruling already requires cross-examination in public universities in Michigan, Ohio, Kentucky, and Tennessee. (The ruling also maintains that private institutions denying cross-examination risk Title IX liability.) And a series of state appellate court rulings have prompted California universities to institute hearings with some form of cross-examination. The record in these five states suggests that, even if the DeVos regulations are adopted, universities will still try to subvert fair treatment of accused students in the Title IX process.

mindingthecampus.org KC Johnson

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SETTLEMENT for Straight Male. Montana State TIX Ms. Shaffer Loathed Straight Males. She Denied Him His Rights. MSU Settled w Male.

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SETTLEMENT for Straight Male. Montana State TIX Ms. Shaffer Loathed Straight Males. She Denied Him His Rights. MSU Settled w Male.

The federal lawsuit that a former MSU student filed last year against Montana State University, Jyl Shaffer, and other MSU employees has settled.  This is the lawsuit where a straight male accused MSU’s Title IX administrator Ms. Shaffer of bias in favor of transgender students and against straight men. The lawsuit charged that the university violated his constitutional rights in 2016 by banning him from the Bozeman campus in the summer and fall semesters, after he privately voiced his objections to transgenderism to an instructor, comments he contended were misconstrued as threatening violence. The male’s lawsuit alleged that the transgender student filed a complaint with the Title IX Office, and neither the MSU dean of students office nor campus police thought the male student’s comments were serious threats that warranted his suspension, but Title IX administrator Ms. Shaffer called the case “cut and dried” and had him kicked off campus. The lawsuit alleged Shaffer showed bias when she wrote an email to the transgender student calling herself “an aspiring ally” and saying, “I’m grateful you trusted us.” Shaffer then offered to assist the transgender student to find work or academic help, and to meet with the ASMSU students’ attorney – but didn’t offer the same assistance to the male student. THe lawsuit went on to state that “Shaffer also has firmly held anti-male beliefs that she shared on her Twitter account,” It cited her 2018 comment calling “accurate AF (as expletive deleted)” an article that talked about “entitled toxic masculinity.”

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JURY BELIEVES EVIDENCE. Ex-Baylor Player Shawn Oakman Found Not Guilty of Sex Assault

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JURY BELIEVES EVIDENCE. Ex-Baylor Player Shawn Oakman Found Not Guilty of Sex Assault

A Texas jury found former Baylor football player Shawn Oakman not guilty of sexual assault. The defense called Mr. Conner, a digital forensics expert as its final witness. Conner said text messages inviting Oakman to the bar were deleted from the accuser’s phone.  As my Tennessee neighbor Clay Travis notes, the charges against Oakman were heavily publicized, and carried serious repercussions for the Baylor football program. As Clay also points out, Oakman is hardly the only high-profile NFL prospect recently acquitted. Tennessee’s A.J. Johnson (and his teammate Michael Williams) were found not guilty after a mere 90 minutes of deliberations last summer.

At this point, how many more court cases do we need before we return to sanity and reason in the battle over campus sexual assault? As I wrote last month, judges across the country (including, most notably, California judges) are rebuking colleges and universities for establishing campus kangaroo courts designed to secure more punishments for young men. And now we’re seeing real courts demonstrate once again the power of due process.

nationalreview -David French dailywire -Ashe Schow

 

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BOSTON COLLEGE Fights to Suppress Doe’s Evidence. Files New Brief In $3M Lawsuit

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BOSTON COLLEGE Fights to Suppress Doe’s Evidence. Files New Brief In $3M Lawsuit

Ahead of a hearing scheduled to take place this coming Thursday, Boston College, in the $3 million lawsuit brought by a alumnus—“John Doe”—submitted its brief in support of limiting the scope of the upcoming jury trial as much as possible. The brief provides a rebuttal to many of the requests put forward by Doe on Feb. 15.

The University is arguing that the “forensically enhanced” video that was considered exculpatory evidence by the criminal prosecutors that dropped charges against Doe for sexual assault should not be presented in court, since it was not available to the hearing board members. Since this trial is not supposed to reconsider whether Doe committed assault, but whether BC breached its contract with Doe, presenting additional evidence is not necessary, according to the brief. Doe’s lawyers have argued that the video should be considered by the jury because the hearing board declined to wait to see the enhanced video, and the video there was not considered exculpatory when BC considered Doe’s appeal of the original decision with the enhanced video. BC’s response has been that charges relating to the appeal and 2014 independent review have already been ruled in the University’s favor, rendering the context irrelevant. The University is particularly concerned with the idea that further witnesses will be called. Doe’s legal team is seeking testimony from Brett Sokolow. Sokolow makes arguments related to Title IX guidelines BC allegedly violated, but the University is arguing that since such matters were ruled on by Casper’s summary judgement Sokolow’s testimony shouldn’t be considered.

Doe originally brought six claims against BC, four of which Casper and the Appeals Court ruled in favor of BC via summary judgement. Those included Title IX gender-bias related claims, negligence, and negligent infliction of emotional distress. Only the breach-of-contract and basic fairness claims need to be decided during the jury trial, but according to Sokolow’s testimony, improper execution of Title IX guidelines and gender bias are tied to the breach-of-contract and basic fairness claims.

bcheights.com -Jack Goldman

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COURT RULING: Accused Male Can Move Forward w Title IX Claim Against SyracuseU

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COURT RULING: Accused Male Can Move Forward w Title IX Claim Against SyracuseU

This case has been ongoing for about thirteen months. Before getting into the motion to dismiss, here’s a refresher. Syracuse student Jane Roe was drinking at a bar. She claimed that when she left, a “black male pulled her into an alley, grabbed her, and tried to kiss her….put his hands down her pants-” Roe got away with the help of a friend. Three months later, she found a black male in the bar who looked similar to her alleged assailant. This man was Syracuse student John Noakes. After engaging the police on several occasions she decided to pursue the matter exclusively through the school’s Title IX office. Jane did not show up to the hearing, so it proceeded without her. Noakes’ primary defense was that he was misidentified by Roe. Title IX Syracuse found Noakes guilty and suspended him for two years. He then sued. Noakes claimed that Syracuse’s process was flawed in numerous ways. Namely, the school:

  • Failed to consider exculpatory evidence (such as text messages and selfies on Noakes’ phone)
  • Used Noakes’ drunken state as evidence of guilt but did not consider whether Roe’s drunken state prevented her from accurately identifying her assailant
  • Ignored Roe’s contradictory statements
  • Failed to acquire sufficient evidence from the police investigation
  • Did not allow Noakes the opportunity to read the school’s investigative report against him
  • Relied on faulty information
  • Did not allow Noakes the opportunity to cross-examine his accuser since she skipped the hearing (note that if accused students skip hearings this is often considered inculpatory by the school)
  • Concluded that Roe was more credible despite the Board never hearing testimony directly from her

Noakes brought four claims against the school: Title IX, Breach of Contract, Title VI (race discrimination), and Negligence. As usual, the school filed a motion to dismiss each of Noakes’ claims in an attempt to quickly end the legal battle. Judge Thomas McAvoy granted and denied in part the motion to dismiss on February 26th. To see highlights from the Decision and Order go here: titleixforall.com/Motion to dismiss granted/denied in part in Noakes v. Syracuse University  -J.Taylor   thecollegefix.com -Staff

 

 

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COURT RULES: “Trauma-Informed” Practices in TIX Sex Investigations are “Plausible” Evidence of Bias Against Males

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COURT RULES: “Trauma-Informed” Practices in TIX Sex Investigations are “Plausible” Evidence of Bias Against Males

The University of Colorado-Boulder’s use of “trauma-informed” practices in sexual misconduct investigations are “plausible” evidence of bias against males, a federal court ruled last week. It denied the taxpayer-funded university’s motion to dismiss Title IX and due process claims by William Norris, who was suspended and banned from campus after two disputed encounters with “Jane Doe” over a lengthy relationship. Norris claimed the university made numerous procedural errors during its 2016 investigation of Doe’s claims from 2014 and 2015. He also faulted the Title IX officials’ backgrounds in women’s studies and public support of women’s advocacy groups, calling those a “conflict of interest” that prejudiced his investigation.

The student has provided “at least some relevant information” to demonstrate that his gender-bias claims are plausible, the required standard in the 10th U.S. Circuit Court of Appeals. The judge also frowned upon “the timing of the notice” of investigation given to Norris and restrictions on his ability to review the investigation file.

thecollegefix.com -E.Berman  Norris v UColorado-Judge Babcock Opinion & Order 

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DRUNK SEX For Two. John & Jane Are Treated Differently. John Is Punished. Jane Is Not. John Wins in Court. MiamiU Settles w John.

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DRUNK SEX For Two. John & Jane Are Treated Differently. John Is Punished. Jane Is Not. John Wins in Court. MiamiU Settles w John.

A male college student was incapacitated due to alcohol one night after a party when a female student engaged him in sexual activity. Even though the university knew the male student was too drunk to consent (based on the school’s own policies) it still suspended him after the female student claimed she was sexually assaulted. The school recently settled with the male student. The case led to perhaps one of the most important court decisions regarding cases of campus sexual assault: In cases of credibility (he said/she said situations) cross-examination is an important tool for determining the truth.

Despite Miami University knowing that Jane initiated the sexual contact and that John, by the university’s own policies, was too drunk to consent, it was John who was punished. John and Jane were treated differently during the hearing process. John was provided less than two days to provide all evidence of his innocence, and Jane was allowed to submit a written statement even though she failed to turn it in before a deadline. A single Miami official investigated, prosecuted, and judged John’s case. John says in his lawsuit that this official “dominated John Doe’s hearing with questions and comments designed to deflate John Doe’s credibility while inflating Jane Doe’s credibility.”

John sued after being suspended, and a judge later criticized the school for its treatment of the accused student. On February 20, 2019, the two parties agreed to drop the lawsuit and settle out of court.

dailywire.com By Ashe Schow

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DUQUESNE STUDENT Nick Washington Has Always Been Innocent. Prosecutors Dropped Charges. Now He’s Telling His Truth, His Story.

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DUQUESNE STUDENT Nick Washington Has Always Been Innocent. Prosecutors Dropped Charges. Now He’s Telling His Truth, His Story.

Nick Washington had just started living his dream — an academic scholarship and a spot on the Duquesne University basketball team. Two weeks after arriving on campus, he was off the team and charged with rape. Two years later, the charge was dropped. “For 18 months, I had been accused of crimes that I did not commit.” Now, Washington is telling his side of the story and what he says happened in his dorm room that night…On Friday, Sept. 1, 2017 Washington said he went to a party with a female student and everything changed. She and I talked. We took pictures, kissed … we took an Uber back to my dorm. We made out in the elevator, got back to my room, we talked and kissed some more and had consensual sex.”  “Hours later, I was asleep in bed. Police come knocking at my door. I opened it, surprised. I had no idea what they were doing there.”…The female who had sex with Washington went to the hospital after telling friends she was sexually assaulted. She refused to talk to police or a counselor, and she did not want to press charges at the time… Washington was charged with rape, involuntary deviate sexual intercourse and sexual assault.  In the year and a half that followed, Washington fought the charges at each court hearing. On the Thursday before trial, prosecutors offered to drop the rape charge and all felony counts against Washington if he and his accuser agreed. Washington plead guilty to disorderly conduct. “Despite how confident we felt about this trial and about Nick, at the end of the day, you can never guarantee what’s going to happen at a trial, and the risks were so very great,” Kerry Verdi, Washington’s lawyer said.

“I’m going to try to put it past me as much as I can, and try to stay positive and move forward.” Nick Washington

wtae.com -Marcie Cipriani

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#BELIEVEWomen Is In a State Of Legal Collapse

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#BELIEVEWomen Is In a State Of Legal Collapse

When future historians reflect back on our present moment, it’s entirely possible that liberal California judges, rather than the Trump administration, will get credit for pulling the plug on the progressive experiment of denying basic due-process rights to American male college students. That’s the takeaway from a stunning Los Angeles Times report from late last week. California’s university justice system — by far the largest in the United States — is reeling not because of Trump’s Department of Education but because of a series of rulings from California courts. Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers…The California State system, for example, has “stopped proceedings in 75 cases.” Other colleges in the state are rapidly revising their policies.

The legal straw that broke the camel’s back was a ruling from California’s Second Appellate District in a case brought by former University of Southern California tight end Bryce Dixon. The court found that when a student faces “severe disciplinary sanctions,” and when witness credibility is “central to the adjudication of the allegation,”

. . fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.

In plain language, the court’s ruling requires schools to afford accused students basic due-process rights, restoring a system of justice that existed for centuries before #BelieveWomen corrupted the legal landscape.

nationalreview.com -David French

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DOE’S COURT WIN Sets Precedent. Claremont McKenna Fought Dirty & Lost. CA Supreme Court Denied CMC’s Petition for Review.

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DOE’S COURT WIN Sets Precedent. Claremont McKenna Fought Dirty & Lost. CA Supreme Court Denied CMC’s Petition for Review.

College students in California owe a big debt of gratitude to John Doe from CMC, Mr.Dixon from USC, and their attorneys. It is primarily because of these two lawsuits and their precedent setting court wins that colleges throughout California, private and public, are forced to change their anti-due process Title IX hearings. After the CA Court of Appeal issued a unanimous decision (by three female justices) in favor of John Doe, CMC issued the following statement:  “The College firmly believes that the grievance process followed in this case met or exceeded relevant legal requirements for expectations under federal and state law.”  It’s important to note that CMC then chose to fight the CA Court of Appeal ruling and to continue waging war against John Doe and due process by filing a Petition for Review with the CA Supreme Court.  The CA Supreme Court denied CMC’s Petition for Review.  I’ll say that again.  The CA Supreme Court denied CMC’s Petition for Review.  (See Doe v. Claremont McKenna Coll. 25 Cal. App. 5th 1055, 236 Cal. Rptr. 3d 655 (Aug. 8, 2018), review denied, No. S251318, 2018 Cal. LEXIS 9212 (Cal. Nov. 20, 2018).”

A California appeals court has revived a Claremont McKenna College student’s Title IX lawsuit against the college, ruling that the lack of cross examination resulted in an unfair hearing. The decision, which came in August 2018, aligns with a ruling by the same court last month that found the University of Southern California at fault for not giving a student accused of sexual assault the opportunity to cross-examine the student accusing him. Both rulings set a precedent for other colleges to update their policies to comply with the court’s ruling.

…Following the Title IX investigation in 2015, CMC found its student “John Doe” responsible for sexually assaulting “Jane Roe.” Roe did not show up or verbally testify at the final committee hearing. However, both Doe and Roe submitted written statements, and Doe testified verbally at the committee meeting. CMC suspended Doe. Doe filed a petition for a writ of administrative mandate, a request for a judge to review CMC’s decision. But his request was denied by a trial court in 2016. Doe appealed, and in 2018, California’s 2nd District Court of Appeals reversed the lower court’s decision, instructing the lower court to grant Doe his writ of administrative mandate….CMC’s Title IX policy has changed since the incident in question and is expected to change again this month said a CMC spokesperson.

Doe Wins TIX lawsuit against CMC and CMC plans TIX changes -Jensen Steady

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