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CALIF. RULING: John Doe Wins. Due Process Wins. CSU Northridge Loses.

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CALIF. RULING: John Doe Wins. Due Process Wins. CSU Northridge Loses.

California courts are putting California colleges on notice. Recently, there have been five CA appeals court decisions in favor of  accused males, and colleges must require hearings and cross examination, or else…’We hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) 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 (e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. That factfinder cannot be a single individual with the divided and inconsistent roles occupied by the Title IX investigator in the USC system. ‘

Conclusion:  ‘Subject to argument as to mootness, the petition is GRANTED. The court will issue a writ directing Respondents to set aside the administrative decision and the sanction of expulsion. Should Respondents elect to initiate new administrative proceedings against Petitioner, they shall do so in a manner consistent with a fair procedure and the views expressed herein.’ Excerpts from Judge Mary H. Strobel. Read the full ruling: Doe v White CSU Northridge

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RULING Against Rollins. Judge says College ‘Treated the Parties Differently From the Start’

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RULING Against Rollins. Judge says College ‘Treated the Parties Differently From the Start’

Last month, U.S. District Judge Roy Dalton refused to dismiss a gender-bias lawsuit against Rollins, alleging that it expelled a male student after ignoring evidence in his favor while overlooking deficiencies in his accuser’s evidence.  There were no eyewitnesses to the sexual encounter between “John Doe” and “Jane Roe.” Though the 22 people interviewed in the investigation gave “conflicting accounts,” their testimony revealed that Roe could also be prosecuted under Rollins policy for taking advantage of an intoxicated Doe. The male student also alleged he faced retaliation during the investigation. The judge allowed Doe’s Title IX claims to move forward under two theories – erroneous outcome and selective enforcement – and also greenlit his breach-of-contract claim. Dalton’s approval of the breach-of-contract claim is notable because it suggests accused students only have to plausibly claim that the “investigatory and adjudicatory process” was not “essentially fair,” according to Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation. The judge said it’s a plausible breach of contract that the college “used a biased investigator who assessed Jane Roe’s account as credible” over Doe’s, didn’t let him question her in any way, “reached the outcome without sufficient evidence” and failed to comply with “federal law and the Clery Act,” as Doe alleges.

..The avalanche of negative public attention against Rollins for its handling of sexual-misconduct complaints by female students led the college to prejudge Doe guilty “to protect its image,” – The college investigated Doe’s claims “amidst a clamor of public and campus scrutiny over its treatment of sexual assault complaints by female students” and “increased scrutiny with the Mancini litigation.” Dalton wrote. Dalton also mentioned that Doe claimed he was hit with “the severest form of penalties” – technically, “permanent separation” from the college and a ban from alumni events – because he’s male. The judge cited previous rulings from two federal appeals courts that aren’t his own, highlighting parallel allegations.

thecollegefix.com By Greg Piper

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WIN for Doe. CA Judge Orders Fresno State to ‘Set Aside’ Finding & Expulsion due to Lack of Evidence & Unfair Hearing

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WIN for Doe. CA Judge Orders Fresno State to ‘Set Aside’ Finding & Expulsion due to Lack of Evidence & Unfair Hearing

A male student at California State University-Fresno was expelled after his school investigated claims of two women who said they were sexually assaulted. Based on available evidence, a judge has called for the school to overturn its decision. John Doe, as he is referred to in court documents, was accused in 2016 of drugging two females and sleeping with them at parties. Court documents show there is no evidence to support such an accusation.

Superior Court Judge Mary H. Strobel found several deficiencies in CSUF’s investigation of John. The student had originally been told he was accused of sexually assaulting Jane 1 because she was too drunk to consent. That claim apparently failed, so he was punished for sexually assaulting her because she was 17 at the time of the sexual intercourse. Boele even amended the investigation complaint, without new evidence, to claim that John told her he knew Jane 1 was 17 at the time of their encounter. John says he said no such thing. Judge Strobel declared Boele’s addition of this claim, which did not exist in the original report or in any of her investigative notes, “deserves little credence.” Because John was not told what he was actually being investigated for, he had no way to defend himself. That, plus his inability to cross-examine his accusers, the witnesses, or the evidence against him led Strobel to conclude he had not been given a fair investigation. Strobel granted John’s petition for writ of mandate and will order CSUF “to set aside the administrative decision with respect to Roe 1 and Roe 2, and the sanction of expulsion.” Doe v-Cal Fresno State Trustees

dailywire.com By Ashe Schow

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INSIDE a Campus Title IX Hearing. Both Sides Describe their Trauma

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INSIDE a Campus Title IX Hearing. Both Sides Describe their Trauma

Courts are mandating that universities offer hearings. States covered by the 6th U.S. Circuit Court of Appeals have been making changes for universities to offer live hearings. Out is the old way of investigating — the so-called single investigator model, where a single university employee or outside expert interviews the accuser, the accused and any witnesses separately and then writes up a report. In is a new model where either side can get a live hearing, with direct cross-examination by the parties involved.

…The Western Michigan University female student said the assault happened in September 2017. Her hearing was in November…A Title IX hearing seems to have the same setup on America’s colleges: a main room with the panel or hearing officer and some sort of private room nearby for each side. Inside the main room, the setup can vary, including sometimes having some sort of room divider placed between the two sides so they can hear each other, but not see each other. The hearings often start with opening statements, the accuser often goes first, then the accused. Each side then questions. As each side is cross-examined they are brought into the room with the hearing officer, while the other side watches via video. Each side can have a lawyer or adviser with them, but the lawyers can’t talk during the proceedings to ask questions. Most of the questions must be submitted in advance; however, follow-up questions are allowed, with the knowledge that the hearing officer can veto any question asked by either side. Then come witnesses. Finally, there’s some sort of final statement from each side.

There’s a very simple reason for having hearings, say those who are accused of sexual assault and those who work with them. “As anyone who’s done even a single trial would tell you, there is no better way to test someone’s truthfulness — regardless of which side they’re on — than through cross-examination,” said Justin Dillon, whose law firm has done scores of hearings in many states. “It’s all fine and good to come in with a story, but how you respond when pressed is what really matters.” The challenge is how much to press, and who’s allowed to do the pressing. “There’s no meaningful confrontation,” Dillon said, adding that hearing officers often soften the questions or shrink the line of questioning. “There are no hard questions. If anything, the panels are super nice to the accuser. Everyone is asked very open-ended questions.”

DeVos announced proposed rule changes to Title IX in the fall that included holding hearings and allowing cross-examination. Those rules were then open for comment until Jan. 30. Approximately 100,000 comments were made on the proposed rules. Dillon isn’t surprised that many of the comments sent to the education department are negative. “Accused students simply don’t have the same option to participate publicly in this conversation,” his firm wrote in its comments on the rules. “If an accused student is found responsible, people reason, they must have done it. If they’re found not responsible, then many people believe that they did it and the school mishandled the case. If you publicly identify yourself as a ‘falsely accused rapist,’ most people either won’t hear or will ignore the first two words.”   Dillon’s firm is supportive of the addition of hearings.

freep.com By David Jesse

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TITLE IX Witness Intimidation, it’s a Thing. Witnesses who Defend the Accused are Indeed Punished

Witness intimidation in criminal cases usually calls to mind organized-crime bosses trying to conceal their guilt. In campus Title IX proceedings, however, a different kind of mob exacts a social and professional price from witnesses who defend the accused. Ask Tanaya Devi, a Harvard doctoral candidate in economics. Her mentor, African American 41 year old, Roland Fryer, founded Harvard’s EdLabs, which describes itself as “an education research and development laboratory devoted to closing the racial achievement gap.” Last year two unnamed women who once worked there filed Title IX complaints accusing Mr. Fryer of verbal sexual harassment. Ms. Devi worked at EdLabs. She says in an interview that she was close friends with one of the accusers, that she witnessed many of the disputed interactions—and that Mr. Fryer did nothing wrong. Ms. Devi publicly defended Mr. Fryer. Since then, she says she’s struggled to find research collaborators and has lost nearly every female friend at Harvard. There was this culture of guilty until proven innocent and, if you’re defending him, guilt by association.”..Another example comes from Matthew Sahm’s lawsuit against Ohio’s Miami University, which expelled him after another student accused him of sexual assault. A sorority sister of the accuser, wrote in an affidavit that she told the Title IX investigator, Susan Tobergte, that eyewitnesses might have exculpatory testimony. “I left feeling very uncomfortable, especially after Susan had suggested I google statistics about sexual assault to find that less than 2% of sexual assault cases were wrongful convictions,” – “I felt that she [Susan] was biased towards one side of the case.” It was “hard to bring information to a table when you are unsure if it will affect your status or relationships in a sorority.” One other witness, also described social pressures not to defend Mr. Sahm. “I have been extremely disturbed by the accusations [against Mr. Sahm] and the literal abandonment of the truth,- this has been really hard to write…I think that if one’s constructed truth begins to hurt another’s character, future, or dignity, that is it is only fair that ‘predisposed alliances’ be let go with the opportunity for reality to surface.”

Read the WSJ pdf article: Title IX’s Witness Intimidation or click article link here wsj.com/articles By Jillian Kay Melchior

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WILL Presumption of Innocence Be The Next To Fall?

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WILL Presumption of Innocence Be The Next To Fall?

Pennsylvania Attorney General Josh Shapiro, led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the DoED, ‘calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972, and weaken protections against sexual harassment and violence for students.  The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.’  That the new rules would be a “significant departure” was pretty much the point. The thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” They are arguing against the value of due process, fundamental fairness for the accused male student. There is also an argument rarely seen, and never by an attorney general. -There should be no presumption of innocence.-  They are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric.

simplejustice.us By Scott H. Greenfield

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REPORT: 48 Colleges in 21 States Show Over Half of Accused Students Found Not Responsible

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REPORT: 48 Colleges in 21 States Show Over Half of Accused Students Found Not Responsible

An analysis of annual reports from 48 colleges in 21 states reveals that 52.7% of campus sexual assault adjudications resulted in a finding of “not responsible” for the accused student. The analysis includes only reports that specifically identify the outcomes for adjudications involving allegations of sexual assault. This finding is similar to a 2017 NCHERM report titled “Due Process and the Sex Police” that stated, “annual summaries show that they are finding no violation of policy 60% of the time in their total case decisions.” Most institutions review sexual misconduct cases based on the preponderance of evidence standard. In practice, this standard is essentially a measure of credibility of the statements of the accuser and the accused. The fact that a larger percentage of students was found not responsible demonstrates that most allegations investigated by colleges are determined to be unfounded. To see the outcomes of campus adjudications of sexual assault claims at 48 colleges click here:   Below is a sample of seven colleges.

COLLEGE     2017Enroll     PERIOD   RESPONSIBLE    NOT RESPONSIBLE

Amherst          1,849                2014                      5                          3

Brown             9,781                 2016-17                0                          3

Dartmouth      6,409                2016-17                4                          4

Hamilton         1,883                2016-17                4                          3

Occidental       1,969                2015-16                2                          0

Stanford          17,184              2016-17                3                          5

Yale                  12,458              2017-18                2                          4

A big thank you to SAVE: Stop Abusive & Violent Environments

 

 

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JUST HOW Easy Should It Be to Destroy a Young Man’s Life?

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JUST HOW Easy Should It Be to Destroy a Young Man’s Life?

Yesterday, the New York Times published a student activist’s op-ed with a rather provocative title: “When College Rapists Graduate.” Now, when you read those words, what do you think? I initially thought the story must be about a prison education program. Instead, the piece was written by a law student and feminist activist, Alyssa Leader,  who laments the outcome of a campus sexual-assault adjudication, and condemns the Trump administration’s efforts to introduce a greater degree of due-process protections to the campus tribunals that hear sexual misconduct cases. Leader claims she was sex assaulted. She filed a complaint against him with the university (Harvard), which, after applying the most lenient burden of proof and a degree of due process that would never be acceptable in any criminal or civil court, found him not responsible. She then sued Harvard. A judge dismissed the case. It’s against this backdrop that Leader now complains that her alleged assaulter “got a coveted job, where he’ll only have more power as time goes on.” The message is crystal clear — not only should colleges adjudicate sexual-assault claims under the most lenient possible standards, they should act as a firewall against the future careers of young men in the crosshairs. But how easy should it be to destroy a young man’s life? According to campus activists like Leader, the answer is: very easy. When Leader condemns the Trump administration’s efforts to bring basic due process to campus, here’s what she’s condemning:

  • The right to cross-examine witnesses;
  • The right to a live hearing;
  • The right to see the evidence against you;
  • An end to “investigator-only” adjudication, in which one person investigates and adjudicates the claims against a student;
  • A definition of sexual harassment that’s consistent with Supreme Court jurisprudence; and
  • A definition of sexual assault consistent with statutory law.

Let’s make this very clear: When campus activists argue against the Trump administration’s due-process guidelines, they are arguing for the power of campus administrators to punish (mainly) young men for alleged acts on or off campus without cross-examination, without seeing available evidence, without a live hearing, and under definitions of the alleged offenses far broader than those that apply under relevant law. For centuries, basic due process has been rightly viewed as indispensable to any decent system of justice. We need an adjudication to determine whether a person is indeed a “survivor.” “Believe women” is a slogan. It cannot form the foundation of a system of justice. Let’s remember, Title IX is a government statute. Title IX adjudications are a government requirement. And before the government can mandate punitive action against any citizen, at the very least it owes that citizen a fair process.

On campus, the Trump administration isn’t departing from norms and values. It’s restoring them to their rightful place in American law.

nationalreview.com By David French

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