DUE Process Rights

Articles relating to due process rights for our College boys

JUDGE RULES FOR Due Process & Against Univ. of New Mexico, Putting a Dagger in Obama’s TIX Guidance

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JUDGE RULES FOR Due Process & Against Univ. of New Mexico, Putting a Dagger in Obama’s TIX Guidance

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in the heart of the Obama administration’s Title IX guidance, still widely used by universities even though it’s been rescinded.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

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EDUC DEPART. Responds to Critics who say TitleIX Draft Could Hurt Accused Students

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EDUC DEPART. Responds to Critics who say TitleIX Draft Could Hurt Accused Students

Some commenters have noted that the department’s draft is out of step with the past year’s precedent from the 6th U.S. Circuit Court of Appeals. Its most recent decision in a campus due-process case, against the University of Michigan, not only requires colleges to allow cross-examination in sexual-misconduct cases that turn on credibility but appears to preclude them from using the single-investigator model. The draft emphasizes that the department is proposing the first binding regulations since its 1975 regulations. Previous administrations used a series of guidance documents that left all parties, from universities to advocates for survivors and accused students, in a position of  “uncertainty about whether the guidance was or was not legally binding.” The draft’s confirmation that universities don’t have to offer live hearings – even though they must offer a method that “effectively substitutes” for cross-examination in non-hearing proceedings – has puzzled some lawyers and academics. The draft indeed does not explain this. All it says is that for colleges using a “non-hearing model,” each party must be allowed to submit written questions for the investigator to ask “the other party and witnesses in a manner that effectively substitutes for cross-examination.”  The law firm Zalkind Duncan & Bernstein zeroed in on how these changes to hearings versus non-hearings could affect proceedings. In a Friday blog post partner Ruth O’Meara-Costello wrote, “Unfortunately, it seems very likely that colleges and universities, many of which have taken strong positions against allowing cross-examination, will respond to the rules by simply eschewing actual hearings in favor of the increasingly popular single-investigator model.” “[R]espondents may lose more than they gain from the cross-examination mandate in hearings if colleges simply drop the hearing model in response.”

Ed.Dept exchange @ College Fix By Greg Piper

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JOHN DOE is Autistic. John went to Alaska Pacific. John Cuddled with a Girl. John got Expelled.

John Doe was a freshman at Alaska Pacific University. He was diagnosed with autism in high school and his parents, provided Alaska Pacific with documentation regarding his autism, how it manifests itself and the resulting social awkwardness… John Doe met E.E., a female student at the University of Alaska. They spent some time together and spent time in his room. During that time, they cuddled, kissed and embraced.  E.E. did not leave or attempt to leave. E.E. did not protest. E.E. did not give any sign she was reluctant or forced. They started to watch a movie. John Doe left to go to class. Upon his return, E.E. was still in the room and crying.  E.E. called her mother, who came to get her.  John was approached by Anchorage Police Depart. officials. John was surprised and saddened by E.E.’s response. John Doe’s social awkwardness and autism and law enforcement’s experience in interrogating hardened criminals led John Doe to think he must have done something wrong.  The Anchorage Police Depart. & the State of Alaska Department of Law thoroughly investigated this matter and determined that John Doe had committed no crime. Based upon that investigation, no charges were filed.

Alaska Pacific then conducted its own investigation. Alaska Pacific made no accommodation of John Doe’s autism and its effects as part of their process. The Americans with Disabilities Act requires Alaska Pacific to make reasonable accommodation to his documented disability. Alaska Pacific had actual notice of John’s disability. John’s father provided Alaska Pacific with extensive documentation regarding his son’s diagnoses, including his treatment providers, descriptions of how his disability affects him. Alaska Pacific made no attempt to accommodate John’s disability in any way. Alaska Pacific did not conduct any hearing. John Doe was not allowed to present any evidence. John Doe was not given access to the evidence gathered by Alaska Pacific. John Doe was not afforded the opportunity to present any evidence from relevant witnesses. Without a hearing, Alaska Pacific decided that John Doe was guilty of sexual misconduct, abusive sexual contact and dating violence.  John was expelled. This injustice was the direct result of Alaska Pacific’s failure to (1) conduct an adequate investigation; (2) provide Plaintiff with due process as defined by Alaska Pacific’s own policies and Title IX of the Education Amendments of 1972; (3) make reasonable modifications in Alaska Pacific’s policies, practices, or procedures regarding Plaintiff’s diagnosed and documented disability, namely autism, as required by the Americans with Disabilities Act, and due to (4) Alaska Pacific’s excessive and unbalanced focus on the concerns and interests of the female complainant and the convenience of the University to the total exclusion of the rights and interests of the male Plaintiff.

John Doe v Alaska Pacific Complaint 

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DEVOS’ FOLLY: 120 Pages of Rules Establishing a System That Shouldn’t Exist At All

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DEVOS’ FOLLY: 120 Pages of Rules Establishing a System That Shouldn’t Exist At All

Ironically, the substance of Title IX, itself is short and to the point. 

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Five words have created an industry and expectation that this sentence entitles co-eds to a sword wielded by their college to cut down anything and anyone whose actions, or inactions, fail to vindicate their every emotional hurt. This was done by the very deliberate unilateral fiat of OCR bureaucrats during the Obama Administration, who pursued a series of lies (which became truths in the minds of the afflicted) and cures for those lies based upon a series of “Dear Colleague” letters and explanatory notes whose sole purpose was to compel a foregone conclusion that female students would have a means by which to vindicate their every emotional sexualized harm at the hands of male students… If this characterization seems severe, it is. Catherine Lhamon has won. On the most superficial level, the new regs may have relieved colleges from Lhamon’s mandate, but they keep the existence of a mechanism intact, they permit colleges to continue to deprive male students of due process…the details of adjudication notwithstanding, they keep colleges in the business of sex policing individual students’ grievances. 

And because of this, the new DeVos regulations attempt to provide an opportunity to break free of the requirements of the Lhamon demands, while maintaining the basic structure, the basic concept, that colleges must remain in the sex policing business under Title IX. They never had any business being there. They still don’t. We’re now tweaking around the edges of a fundamentally untenable system as if a bell here, a whistle there, will somehow make this work. Lhamon may not have gotten everything she ever dreamed of, but she won by the fact that there are about 120 pages of rules establishing a system that shouldn’t exist at all.

simplejustice.us By Scott H. Greenfield

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PURDUE LAWSUIT UPDATE: Possible Victory for Accused Student in 7th Circuit

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PURDUE LAWSUIT UPDATE: Possible Victory for Accused Student in 7th Circuit

To date, in federal due process lawsuits, the only statistically significant factor in the outcome of a case is the gender of the judge. Accused students have been on the prevailing side just under 60 percent of the time in decisions from male judges; universities have been on the prevailing side more than 60 percent of the time in cases decided by female judges.  Given that today’s Seventh Circuit Purdue argument featured an all-female panel, Purdue appeared to have an advantage. After oral argument however, it seems as if the case could go either way, with the likelier outcome being a victory for the accused student.  The facts of the case were unusually troubling, even in the Title IX realm: the guilty finding led to a loss of the accused student’s ROTC scholarship and Navy career, after a process in which the accuser neither appeared at the hearing to speak and answer questions, but didn’t even submit a statement to the hearing. (The evidence in the case was a Title IX investigator’s report and a statement written on the accuser’s behalf by a university counselor.) The complaint alleged that the accused student had no chance to present exculpatory witnesses, including a roommate who said that the alleged assault never occurred. As Judge Barrett noted, “It was a credibility contest in which you not only did not hear directly from her, you didn’t even read words that she had written.” The Purdue approach, indeed, seemed designed to celebrate unfairness. The university’s lawyer, incredibly, argued that in conducting its TIX adjudication, “Purdue has no reason to do anything except look at the evidence that the [accuser] said was inculpating of [the accused].” Perhaps the most interesting exchange of the hearing came between Judge Barrett and the Purdue lawyer over what type of evidence is necessary to establish a plausible claim of gender bias.

academicwonderland.Includes Audio of Oral Arguments By KC Johnson

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JURY to Decide if Brown U. Railroaded Student in TitleIX Case Because he’s Black

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

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READ THIS: DoED New Title IX Rules Are Revealed. Here’s What They Say.

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READ THIS: DoED New Title IX Rules Are Revealed. Here’s What They Say.

Under new rules pertaining to Title IX, the federal statute that forbids sex discrimination in education, the Education Department will clarify that school officials must adopt procedures that protect students from harassment while still guaranteeing due process rights for the accused.  I have now read the full proposal: a 120-page document that is “intended to promote the purpose of Title IX by requiring recipients to address sexual harassment, assisting and protecting victims of sexual harassment and ensuring that due process protections are in place for individuals accused of sexual harassment.” The new rules make one thing abundantly clear: Those who claimed this move by Education Secretary Betsy DeVos represented some kind of attack on women were wildly off-base. Know Your IX, an activist group that serves alleged victims of campus sex assault, claimed that the rules are “worse than we could have imagined.” This is an absurd mischaracterization of the document, which you can read for yourself here. One of the most praiseworthy aspects of the proposal is the mandate to train Title IX adjudicators using unbiased materials that do not “rely on sex stereotypes and instead must promote impartial investigations.” Title IX officials must also make training materials available for accused students to peruse, which means that underlying bias could be made more evident. In summary, the new rules offer a workable definition of sexual harassment, explain the circumstances in which school officials are obligated to respond to accusations, and establish “procedural safeguard” to protect both the accuser and the accused.

reason.com By Robby Soave

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WIN! Federal Appellate Court Rules that Denying Cross-Examination Violates Due Process

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WIN! Federal Appellate Court Rules that Denying Cross-Examination Violates Due Process

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

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COMPARING Seven Key Changes in DeVos’ Title IX Proposal

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COMPARING Seven Key Changes in DeVos’ Title IX Proposal

KC Johnson writes that the long-awaited new regulations on campus sexual misconduct, are expected to be fairer toward the accused than the Obama-era Title IX guidance policies. In the article below, KC compares what we know of the guidelines—from published reports and from his discussions with a source who has seen the proposed regulations—with the Obama-era guidance dating from 2011. If you want a play by play look at seven key Title IX changes click below.

mindingthecampus.org By KC Johnson

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