56th SETTLEMENT in Due Process Case. The College of St. Scholastica Settles with John Doe
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CURRENT News
LAWSUIT: HARVARD Zealots Abuse Title IX to Nail the Accused
Harvard is perhaps the only institution in the country with multiple sets of Title IX procedures, depending on which branch of the university the student attends. At Harvard Law School, the parties are allowed to have full legal representation, the tribunal is basically independent, and there’s meaningful discovery. Harvard undergraduates, on the other hand, experience one of the most unfair procedures of any school—no hearing, no cross-examination, a single-investigator model that allows one person, hired by the Title IX office, to serve as investigator, judge, and jury.
Though inconsistent with the new Title IX regulations proposed by Betsy DeVos, the university is desperate to retain its one-sided procedures. According to a joint court filing last week, Judge Indira Talwani expressed skepticism during the hearing that Harvard had authority, under its Title IX policy, to move forward with it’s investigation of Jack Doe. The university, remarkably, insisted that if it couldn’t adjudicate Doe under its Title IX policy, it would charge him under Harvard’s general disciplinary policy, which has few limitations. (Talwani was more open to this argument.) Harvard’s position thus amounts to a suggestion that all sexual assault allegations will be adjudicated under its Title IX policy—except those for which the Title IX policy has no jurisdiction, in which case Harvard will just use another policy.
In other words, according to Harvard, there’s no limitation at all on when and how it can adjudicate sexual assault allegations.
mindingthecampus By KC Johnson
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OUR BLACK SONS MATTER, But is The Black Caucus Listening to Mothers of Accused Black Sons?
“In the campus context we have seen over a thousand accused students mostly devastated, despondent and some suicidal. The majority admit to having considered suicide and a few have been successful.” Said Cynthia Garrett Co-President of FACE, or Families Advocating for Campus Equality – a group that fights for those wrongly accused of rape and sexual assault on college campuses. Garrett shared her conversation with a black mother, “I found it both interesting, eye opening, and very sad that regarding her son’s false accusation, a black mother told me ‘It’s just more of the same for us.’… “I also was alarmed that the black caucus in Congress refused to get involved with the railroading of black and other minority students on campus, because they are aligned with the women’s movement. These issues are not mutually exclusive,” Garrett said. “What I see happening in the U.S today is the abandonment of men and men’s issues in general and black men and minorities in particular. Garrett is not alone with this view.
Lara Bazelon, a feminist law professor started a pro bono legal clinic for assisting low-income minority male students at California colleges who face expulsion over Title IX rape charges. Unbelievalbly, Bazelon is receiving threats for doing this…Citing recent California court decisions against UC-Santa Barbara and the University of Southern California, Bazelon said that defending due process “shouldn’t be a radical or controversial position.” The law professor called out the American Civil Liberties Union, which is supposed to be defending the rights of disadvantaged people, but “when it comes to these cases, they don’t.” “We are standing up for the Constitution and making sure that these court decisions are being enforced,” she said.
“It’s no wonder that the accused suffer greatly, as is obvious from their loss of not just their educations and careers, but they often become isolated from friends and sometimes family as well. ” Cynthia Garrett, co-President of FACE.
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BETSY DEVOS Is Making The Right Choice On Sexual Assault Rules
President Trump’s Department of Education, under the standard of Secretary Betsy DeVos, is in the long-anticipated process of changing the procedures for what colleges can, should and must do regarding sexual assault allegations. Forbes contributor Michael T. Nietzel has a good summary of the proposed changes but, most generally, the DeVos proposals shift the definitions and processes in favor of the accused…Mostly missing from the conversation and understanding of the DeVos changes, is that – good or bad, necessary or provocative – a shift in how colleges deal with sexual assault is inevitable. And not just any shift. One way or another, the rules are going to move in the direction of those accused of sexual assault because courts have already begun to move the needle in that direction, in some cases even surpassing the proposed DeVos modifications. The courts are already forcing schools to re-examine and change the rules for these cases, just with a higher legal and reputational costs and with far less public awareness and input. In that light, DeVos had a simple decision to make. She could do nothing and allow the courts to revise the rules using a patchwork of rulings in various jurisdictions over several more years. Or she could write new rules applicable to all schools with some form of public input,
forbes.com By Derek Newton
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LAWSUIT: HARVARD DEAN Rakesh Khurana, Threatens Harvard Males w Sex Assault Claims if Males Don’t Obey Him
If Harvard is looking to throw an administrator under the bus in the wake of federal and state lawsuits against its sanctions on single-sex clubs, Rakesh Khurana seems like a good candidate. The dean of Harvard College invited representatives of all-male clubs to a meeting under false pretenses a year before the sanctions were proposed. The May 2015 meeting was supposed to cover “the latest school policies on alcohol and sexual assault,” but Khurana instead threatened to blackmail the clubs if they didn’t go coed: At that meeting, according to the suit, Khurana waved a sheet of paper in the air that he said contained accounts of sexual assault. “Khurana said that the papers in his hand were very embarrassing to the clubs and that he could not guarantee that they would not be leaked,” the lawsuit says. “But, Khurana said, if some clubs became co-ed — systematically and soon — that would help the situation. It was an unmistakable threat.” The federal lawsuit pins Harvard’s campaign against single-sex clubs starting in 2014 on the installation of Khurana as dean of the college and a sexual-misconduct complaint against Harvard filed with the Department of Education’s Office for Civil Rights. It points to the seeming arbitrariness of the sanctions, which target otherwise unobjectionable groups simply because they limit membership to one sex. The plaintiffs’ website Stand Up to Harvard attacks Harvard on multiple fronts. “On December 3, brave students, sororities and fraternities filed lawsuits in federal and Massachusetts courts to stand up for the rights of students,” read a tweet many alumni re-posted verbatim across the social media site. “It is time to stand up to Harvard.”
thecollegefix By Greg Piper
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LAWSUIT: Expelled Days Before Graduating, Male Sues UChicago & Ex-Girlfriend Accuser
A former male student expelled a week before graduation last year for sexually assaulting a female student is now suing the University of Chicago and the female student. The lawsuit, filed in early November, argues that UChicago discriminated against the plaintiff on the basis of gender and denied him a fair investigation. It also sues the female student, who brought the case of sexual assault to the school, claiming she spread false information about him and intended to inflict emotional distress on him. This is the second lawsuit in recent years that sues UChicago under Title IX for discriminating against males. The first one, filed in 2016 by a male student facing a sexual assault complaint at the time, was settled in early 2018. The plaintiff’s lawyer declined to comment on the lawsuit, saying, “We believe the complaint sets forth the plaintiff’s claims in a fairly straightforward manner and prefer to litigate in court rather than the press.”
chicagomaroon By Elaine Chen
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COWARDLY REPUBLICANS Defend Due Process For Kavanaugh But Not Accused Students
The Republican Party supports due process for wealthy white men, such as Brett Kavanaugh and Donald Trump. And only wealthy white men. It’s hard to come to any other conclusion, given how sparingly elected Republicans have discussed the importance of careful deliberation when it comes to sexual-misconduct allegations in any other context. They certainly aren’t coming to the defense of Education Secretary Betsy DeVos as she seeks to institute basic protections for accused students – disproportionately nonwhite – in Title IX proceedings. That’s clear from the research of KC Johnson and Stuart Taylor, co-authors of The Campus Rape Frenzy, published in The Weekly Standard…Two of the federal judges on President Trump’s Supreme Court shortlist, Amy Coney Barrett and Amul Thapar, have scolded universities that failed to allow any form of cross-examination in proceedings. Judge Thapar wrote the opinion that enshrined the right to cross-examination in the 6th U.S. Circuit Court of Appeals, “one of more than 100 federal and state court decisions since 2011 in which universities found themselves on the losing side in lawsuits brought by students accused of sexual assault,” Johnson and Taylor write:
In their rulings, judges have cited pervasive pro-accuser bias among academic officials; secret training of adjudicators to believe accusers even in the face of discrediting evidence; bans on meaningful cross-examination; concealment of exculpatory evidence; designation of a single bureaucrat as investigator, prosecutor, judge, and jury; and numerous other due-process outrages.
Now is the chance for congressional Republicans to show “their demands for fairness to Kavanaugh go beyond partisan politics,” and speak up for the less privileged students who find themselves at the mercy of kangaroo courts.
thecollegefix By Greg Piper
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4th LAWSUIT Against Indiana University: Male Expelled through 2022. Claims Gender Bias.
A male student has filed a federal lawsuit against Indiana University after the Bloomington school investigated a sexual assault complaint against him and determined that even though he “reasonably should not have known” the woman was incapacitated, he was still responsible for nonconsensual sex.
According to John Doe’s complaint against IU, Jane Doe, made the accusation that John had sexually assaulted and exploited her more than eight months after the two had sex. The pair was photographed without their permission while having intercourse and the pictures were subsequently shared. The complaint states that as soon as John learned about the photo, he immediately took action to have the picture removed. A few days later, the university’s Office of Student Conduct contacted John and indicated he may have experienced sexual misconduct. In a meeting with OSC investigators, John was told they wanted to talk about the picture. However, John alleges the statements he made as part of that investigation were then used against him in the sexual assault investigation…Specifically, while John maintained that he had asked for consent, he did not “elaborate on verbal communication” when he was interviewed as a complainant in the photo investigation. Moreover, that complaint states that although the photo investigators found that John did not consent to having the picture taken or disseminated, the sexual assault panel determined he was responsible for the “exploitation.” According to the complaint, a hearing was held Oct. 19, 2018, with three panelists presiding.
The hearing lasted from 1:30 to 8:55 p.m. with most of the witnesses being contacted by phone. Jane’s sister was permitted to testify even though she told the panel she had hit her head and was on her way to the hospital. John’s witnesses were neither contacted by the panel nor mentioned in the final investigation report, although they could have provided information regarding his habit of seeking verbal consent from sexual partners. However, Jane’s friends were contacted and permitted to testify. The complaint describes the investigation as “shoddy.” It also asserts the “gross lack of process and unfairness afforded to John” is in contrast to the “robust and complete process and control over the scope and timing of the investigation afford to Jane.”
The complaint claims IU violated Title IX because John was treated unfairly because of his sex and the university breached its contract with John when it failed to follow its own policies and procedures and was negligent in enforcing its own policies and procedures. Doe claims the university was biased against him because of his gender and, along with damages, is seeking restitution for the years of tuition he paid to IU. This is the fourth lawsuit filed against Indiana University by a male student accused of sexual misconduct. Colleges and universities across the state have been hit with similar complaints, largely from male students claiming their constitutional rights were violated.
theindianalawyer By Marilyn Odendahl
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LAWSUIT: PRINCETON Male Complains of Harassment From Ex-GFriend. Princeton Waits & Investigates Male When Ex Complains
Following closely on the heels of its Ivy League peer in Cambridge, Princeton University has finally been sued for violating an accused student’s due process rights in a Title IX proceeding. That means the entire Ivy League has now been hit with litigation stemming from the Obama administration’s Title IX guidance, rescinded a year ago by the Trump administration. Like the Harvard lawsuit, which focused on racial discrimination, the Princeton complaint alleges “John Doe” was treated differently because of his immutable traits – in this case, because of his sex. He had actually told Princeton in January that “Jane Roe” was harassing him after a consensual sexual encounter several months earlier. But the school waited until November – 18 months after their encounter – to tell him that Roe had also complained and that he was under investigation. The filing does not specify more about the encounter between Doe and Roe, focusing instead on Princeton’s Title IX procedures, which were modified under threat from the Obama administration. The Obama administration forced Princeton to lower the evidence standard to “preponderance” – better known as “more likely than not” – and hire an administrator in 2014, three years after its Title IX guidance was released.The school has refused to grant a “brief continuance” in Doe’s proceeding in violation of its own contract, which allows investigations to extend beyond 60 days when investigators have “good cause” or “other legitimate reasons.” The university has nothing to lose by pausing the proceeding, while Doe has everything to lose – “reputational and educational injuries for conduct that he unequivocally denies” – if Princeton rushes forward to beat the changed regulatory landscape. He’ll suffer irreparable harm that monetary penalties on Princeton can’t fix.
thecollegefix By Greg Piper
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CALIFORNIA COURT OF APPEAL Finds That USC Denied Accused Student A Fair Hearing
This is a great win for John Doe!
The California Court of Appeal issued an opinion today finding that the University of Southern California (“USC”) failed to provide a fair hearing in a Title IX sexual misconduct investigation and final decision by USC’s Vice President for Student Affairs Dr. Ainsley Carry in November 2014. The Court of Appeal ordered the trial court judge, Hon. Joanne B. O’Donnell, to set aside her February 2016 decision denying the accused USC student’s writ of mandate and also awarded John Doe his costs on appeal. READ Appellate Judges Opinion Doe v USC
In May 2014, USC suspended John Doe from the university and evicted him from campus housing the same day without any hearing. Over the next several months the alleged sexual misconduct was investigated first by Marilou Mirkovich, an attorney hired by USC, and later by USC Title IX investigator Dr. Kegan Allee, who served as the investigator and also the adjudicator under USC’s administrative policy. (In December 2013, attorney Marilou Mirkovich was engaged by Occidental College to serve as an adjudicator in another Title IX case that is also pending at the Court of Appeal, Doe v. Occidental College, B284707. ) Dr. Kegan Allee ultimately found by a preponderance of the evidence that John Doe knew or should have known Jane Roe was too drunk to consent to sexual activity. John Doe appealed Dr. Allee’s decision to USC’s anonymous Student Behavior Appeals Panel, however, the USC Appeals Panel agreed with Dr. Allee and recommended his immediate expulsion. On November 12, 2014 Dr. Ainsley Carry informed John Doe that he had approved the Appeals Panel decision, which became final.
In November 2014, John Doe challenged USC’s Title IX action to the California Superior Court in a writ of mandate and sought an order to stay his expulsion from USC so that he could continue his undergraduate education elsewhere, if not at USC. On November 19, 2014, Superior Court Judge Joanne B. O’Donnell denied John Doe’s request for a stay of the administrative expulsion decision, stating that John Doe failed to show “that the notation of expulsion on his transcript will cause him irreparable harm between now and the hearing on his petition.” Over a year later on February 29, 2016, Judge O’Donnell denied John Doe’s writ petition, which the Court of Appeal has now remanded and ordered the trial court to grant. Due to his expulsion from USC, which John Doe was required to disclose to possible transfer schools, John Doe has been unable to gain admittance to another four-year institution to continue his education. Now that the findings and sanctions from the unfair USC Title IX process have been reversed, John Doe should be able to continue his education.
Today’s decision builds on recent California Appellate rulings that help define the scope of fairness and due process protections that colleges and universities must provide to accused students in sexual misconduct proceedings. Mark Hathaway also assisted the accused students at the campus proceedings or trial court in the following published cases: John Doe v. Regents (“UC Santa Barbara”) (2018) 28 Cal.App.5th 44, John Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, and John Doe v. Regents (“UC San Diego”) (2016) 5 Cal.App.5th 1055.
SOS sends a Big Huge Congratulations to John Doe, his family, and to Doe’s attorney’s Mark Hathaway and Jenna Parker. It is due to the perseverance and strength of the few John Doe’s who can mentally and financially endure the college’s persecutions, that these court-ordered due process wins are finally being afforded to Title IX falsey accused students. And of course, a big thank you to the attorneys who are the legal minds in this endeavor..fighting against the goliath college’s counsel who come with endowment funds.
-Alice
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