DUE Process Rights

Articles relating to due process rights for our College boys

TO ATHLETIC COACHES: Lawyers Say Contract Sexual Misconduct Clauses Are Concerning

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TO ATHLETIC COACHES: Lawyers Say Contract Sexual Misconduct Clauses Are Concerning

The scandal embroiling head football coach Urban Meyer at The Ohio State University took on a concerning new dimension recently, when media coverage revealed that last April, Ohio State added language to Meyer’s contract requiring him to report any known violations of the school’s sexual misconduct policy. The clause Ohio State inserted into Urban Meyer’s contract when it gave him an extension and $1.2 million raise in April required him to “promptly report to Ohio State’s Title IX coordinator for athletics any known violations of Ohio State’s sexual misconduct policy.” That now appears prescient — the school is currently investigating Meyer’s failure to report domestic abuse allegations against one of his assistant coaches. If Meyer breached that clause, the university may not have to pay the $38.1 million it would owe him if it fired him without cause. Ohio State isn’t the only school that has added this sort of clause to coaching contracts. So has Texas A&M. This trend is seemingly a reaction to the sexual assault scandal at Baylor University. No school wants to be the next Baylor. And some schools apparently believe that these new clauses are a way to avoid that fate. As attorneys who have represented scores of students nationwide in sexual misconduct investigations, however, we are concerned that these clauses will do a lot more harm than good, by turning innocent college students into alleged perpetrators of sexual misconduct. That’s because there’s a wide gap between how schools define “sexual misconduct” and what people typically consider “sexual misconduct.” Schools, to the surprise of no one except people who work at schools, sometimes don’t have a lot of common sense. But when schools deputize coaches to report on their players — or face termination without severance — there will be a lot more of these sorts of cases: technical violations of an overly broad policy that ordinarily wouldn’t turn into a full-fledged sexual misconduct investigation. The problem isn’t the noble motivation of these new clauses — it’s that schools define “sexual assault” and other forms of “sexual misconduct” too broadly. Law360 -Coach Contract  Op-Ed By Bernstein and Dillon

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JOHN DOE Sues St. Mary’s College of Maryland. It’s a ‘Quasi-Judicial System-Violates own Policy’

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JOHN DOE Sues St. Mary’s College of Maryland. It’s a ‘Quasi-Judicial System-Violates own Policy’

According to the lawsuit, neither John Doe or Jane Roe were intoxicated during their interactions and Jane did not stay the night at John’s place. The two left together after their intimate encounter. But four months later, on January 22, 2018, John Doe was visited by Campus Police who hand delivered a document entitled Notice of Investigation. Prior to this visit John was completely unaware of any complaint or any College administrative investigation concerning him. The College’s Procedures require the Title IX Coordinator and the Investigator to be separate persons, but Michael Dunn disregarded that and served in the roles of TitleIX Coordinator, investigator, and judge and jury in a clear violation of the College’s Procedures…Throughout the disciplinary process, the College treated John unfairly because of his sex, including, among other things, by failing to give him basic due process protections such as the right to confront his accuser, to receive copies of relevant evidence, and to present witnesses and other evidence on his own behalf; and by conducting an inadequate, unreliable, and biased investigation of the complaint against him. ‘The facts of this matter, and the actions of the Defendant in this matter, are evidence of administrative quasi-judicial system at a public college, so poorly conceived and illegally administered, and so grievously flawed that it rises to the level of a blatant, systemic and actionable violation of the Plaintiff’s civil rights.’

Complaint Doe v St. Mary’s

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JOHN DOE Sues East Carolina U. Claims Hearing was a Sham.

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JOHN DOE Sues East Carolina U. Claims Hearing was a Sham.

John Doe claims East Carolina University mishandled his sexual misconduct case and he is now suing for damages. The lawsuit names 13 defendants from the chancellor to the school as a whole.  As stated in the complaint, “Doe was sanctioned and subjected to a three year suspension from the University, which is tantamount to an expulsion. As a result of Defendants’ imposition of the unwarranted and erroneous sanction against John Doe, he has sustained damages to his reputation, future education and career prospects, physical, psychological and emotional damages, economic injuries, and the loss of educational and career opportunities.”

wcti12.com By Morgan Newell   COMPLAINT.pdf

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LAWSUIT: USF St. Petersburg Male Asks for Rehearing, Cites Recent CA Appellate Court Win

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LAWSUIT: USF St. Petersburg Male Asks for Rehearing, Cites Recent CA Appellate Court Win

A Pinellas County circuit judge has denied a former Student Government leader’s petition that his due process rights were violated when he was accused of sexually assaulting another student in his dorm room in September 2016 and expelled in May 2017. Now the expelled USFSP male has asked for a rehearing, citing a similar case in California…The college male had sued USF St. Petersburg in June 2017, contending that the university denied him due process because it violated its disciplinary procedures, failed to give him proper notice of the allegations and evidence against him, and denied him the opportunity to cross-examine his accuser. He does not seek reinstatement at USFSP, he only asks that his expulsion – and a cloud over his future – be removed from his record. “I will lose all opportunities to obtain a good education as well as to pursue my dream of going to law school.” At USFSP, his accuser was not required to appear at his hearing or answer his questions. The male’s lawyers requested a rehearing, and in a supplemental filing last week they cited a ruling by a California state appellate court in a similar case. In the Calif. case the female accuser from Claremont McKenna College was not required to appear before the disciplinary committee – in person or by video conference – and that violated the accused student’s right to a fair hearing, the appellate court ruled.

crowsneststpete.com By Anna Bryson CA Appeals Court CaremontMckenna Must Be Fair To Accused

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CA JUDGE Orders CSU Long Beach to Junk TitleIX Finding Against Male: & Allow X-Examination

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CA JUDGE Orders CSU Long Beach to Junk TitleIX Finding Against Male: & Allow X-Examination

At a hearing this week, Judge James Chalfant of L.A. Superior Court confirmed his ruling that Cal State University-Long Beach denied “John Doe” several elements of a “fair procedure”: It didn’t give him “proper notice” or the opportunity to “respond to all evidence” used against him or cross-examine his accuser in “live hearing testimony.” One of the more unusual findings was that multiple witnesses disputed what Title IX Investigator  Carol Fulthrop had attributed to them in her report, which Chalfant repeatedly characterized as of “poor quality.” The case involves two graduate research assistants. The dispute concerns whether Doe forced Roe to touch his penis or Roe did it unprompted on one occasion, and whether their sexual intercourse in her office on a later occasion was forced or consensual. Chalfant found numerous problems with CSULB’s investigation. The judge scolded CSULB for saying Doe “unquestionably” knew what he was facing because campus police had interviewed him and Roe had filed for a restraining order. There’s no evidence he even met with TIX Coordinator Caveness, much less “what was said in the meeting,” owing to Investigator Fulthrop’s “poor quality” report, nor that the police interviewed Doe on the given date. TIX Investigator Fulthrop said that even if Doe’s account of their intercourse was accurate that didn’t meet the school’s affirmative-consent standard. Doe was found responsible. The judge hammered Fulthrop again for the quality of her report, which did not show that the university gave Doe the evidence “that would be considered by the decision-maker” or even specify who the decision-maker would be. Chalfant stated, CSULB is required by “case law and their own policies” to give Doe its own evidence against him, which “differed significantly” in content and governing standard. Chalfant notes that Doe’s appeal shows his witnesses disputed Fulthrop’s “characterization of their statements” in her final report, which was withheld from Doe until he was found responsible. The judge goes on at length:

‘Respondents seem to believe that there is no requirement that its investigator take notes and document witness statements. This is wrong. It is true that there is no obligation to take notes, but an investigator’s failure to do so reflects poorly on the investigation. More important, CSULB had a duty to provide Doe either with written witness summaries or at the absolute minimum, oral witness summaries (the court does not believe that oral summaries would be adequate except in the simplest cases). The school cannot shirk its obligation by not preparing summaries.’

thecollegefix.com By Piper   Judge Chalfant’s Tentative Ruling

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BOSTON COLLEGE Wants to Avoid Jury Trial for Dean Telling TitleIX Adjudicators How to Rule

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BOSTON COLLEGE Wants to Avoid Jury Trial for Dean Telling TitleIX Adjudicators How to Rule

When the 1st U.S. Circuit Court of Appeals overturned a trial court’s summary judgment in favor of Boston College in a lawsuit brought by a student accused of sexual assault, it sent the case back to trial court. Recently, a joint statement was filed by the two parties in an ongoing lawsuit brought by an alumnus against Boston College alleging that the University mishandled sexual assault charges levied at him. The filing was made in response to an order by Judge Denise Casper for the parties to propose how they wanted to proceed. In a joint filing, the parties stated their disagreement over whether a jury or judge should decide whether the college breached its contract with “John Doe” and violated “basic fairness” in his adjudication. Doe argues in the joint filing, that the 1st Circuit expressly permitted him a jury by saying a “reasonable jury could” and “should” resolve the factual issues around the directives of Chebator and Hughes. It also remanded for trial his claim that the university violated basic fairness in both Doe’s 2012 and 2014 disciplinary proceedings.

The college argues that the 1st Circuit ruling only found its 2012 proceeding against Doe problematic, so “all that remains to be tried on liability is the question whether” the statements by Chebator and Hughes constituted “improper interference” with the 2012 proceedings. This means that the parties should get a “bench trial” where the judge makes the finding… Doe was accused of groping a female student on a crowded dance floor on a cruise ship. The college refused to wait for a completed analysis of forensic evidence that Doe said would clear him, including “swab tests” and surveillance video from the ship. The state dropped charges against Doe a year and a half after Boston College denied his appeal.

thecollegefix.com By Greg Piper

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FEMINIST Prof. Accused/Suspended of Harassing Male. Fems Cry Foul. Claim TitleIX is a ‘Feminist Tool’. Not to be Used on Fems.

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FEMINIST Prof. Accused/Suspended of Harassing Male. Fems Cry Foul. Claim TitleIX is a ‘Feminist Tool’. Not to be Used on Fems.

Somehow, when it comes to one of their own being accused of sexual harassment, some feminists discard their devotion to the #MeToo movement and blame the victim instead. Avital Ronnell, a leading professor of feminist philosophy at NYU, has been forced to take a year off after NYU determined that she had sexually harassed a male student. If there’s a stranger #MeToo story out there, I’ve yet to hear it. Ronnell identifies as a lesbian; the student she is accused of harassing is gay, and now married to another man. Also extraordinary: many well-known feminists leaped to her defense despite the fact that they admitted they had no knowledge about the findings of the Title IX proceedings against her.  Feminist scholars that came to Ronnell’s defense, demanded she “receive a fair hearing.”  (Fair hearings are rarely screamed for when the accused is male.) In this case, the gay male accuser, Nimrod Reitman, claimed that lesbian Prof. Ronnell pressured him into an amorous relationship. She would visit him at his home, climb into bed with him, and force him to kiss and touch her… One of Ronnell’s defenders, Prof. Diane Davis revealed a startling confession. Ms. Davis openly confessed that ‘she and her colleagues were particularly disturbed that, as they saw it, Mr. Reitman was using Title IX, a feminist tool, to take down a feminist.’

How can it be said that Title IX is really about ending gender-based discrimination, if it’s wrong to use Title IX to protect men from sexual harassment?

reason.com By Soave dailywire.com By Berrien

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SIXTH CIRCUIT: Can the University of Michigan “Set Up a Kangaroo Court”?

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SIXTH CIRCUIT: Can the University of Michigan “Set Up a Kangaroo Court”?

The Sixth Circuit appears poised to rule again for an accused student in a lawsuit from the University of Michigan. Despite the court’s ruling about the importance of cross-examination in Cincinnati, the University of Michigan elected to maintain its Title IX procedures, which deny to the accused student any form of cross-examination. University of Michigan set up procedures in which neither the accused student nor the ultimate university decisionmaker benefited from cross-examination. And cross-examination would have mattered in this case, because the accuser’s medical records contradicted her claim to have been incapacitated. At least two judges on the panel- Amul Thapar and Julia Gibbons- seemed deeply troubled by this approach.  Indeed, Thapar summarized the university’s argument as requesting authority to “set up a kangaroo court.”

This case is an unusually rich one factually. UM uses a single-investigator model, in which one person interviews the parties and other witnesses, and then writes a report. In this instance, the investigator found the accused male student not guilty. But, exercising her rights established under the Obama-era 2011 Dear Colleague letter, the accuser appealed the finding. Using the same evidence as what was before the investigator, but without hearing from any of the parties, the appeals board found the accused student guilty, alleging that the accuser was incapacitated, and expelled him.

In the sixth circuit court, Deborah Gordon argued for the accused student; the University of Michigan’s lawyer was David DeBruin. DeBruin faced repeated, skeptical questions from both Judge Thapar and Judge Gibbons.  Thapar accused DeBruin’s  position of disregarding “everything courts have ever said, including the United States Supreme Court, about cross-examination.”  Gibbons noted that, given the facts of the case, it was absurd to suggest that the accused student’s rights were protected in the appeals process. After UM’s lawyer DeBruin accused the judges of second-guessing the appeals board’s factual findings, Thapar replied: “We’re not second-guessing the evaluation; we’re second-guessing the procedures provided to the Plaintiff before you deprive him of his rights. And what our problem is: is we view the due process clause, and what happens all the time—and we talked about it in Cincinnati, in Doe v. Cincinnati, where we said how fundamental cross-examination is when credibility is at issue. And what you’re saying is, “’Trust us, not the Constitution, and let the university tell you what’s sufficient.’”

Audio of Sixth Circuit Oral Arguments  By KC Johnson

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COURT WIN For John Doe. St. Joseph Must Deliver Training Material, Plus Much More

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COURT WIN For John Doe. St. Joseph Must Deliver Training Material, Plus Much More

Recently, John Doe heard a great ruling in a Pennsylvania court. Judge Diamond granted John Doe’s request to order St. Joseph University to produce records in part as follows:

  • Produce records of all sexual misconduct case investigations (including investigations conducted by investigators besides Ms. Malloy) from 2013 to 2018.
  • Produce Mr. Bordak’s training manual, training presentation, and any other training materials.
  • Produce all disciplinary records related to Jane Roe.
  • Plaintiff’s request to overrule the objection of defendant Roe to Plaintiff’s request for production of Roe’s records is GRANTED.  Defendant Roe shall produce her mental health records, SJU disciplinary records, and four days of telephone records.Read the full ORDER ON_MOTION_SUMMARY_JUDGEMENT
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BIG WIN For John Doe In CA Appeals Court. Claremont McKenna Must Be Fair to Accused

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BIG WIN For John Doe In CA Appeals Court. Claremont McKenna Must Be Fair to Accused

A California appellate court has revived the appeal of a Claremont McKenna College student who was suspended for a year for violating the school’s sexual misconduct policy. The court found that CMC’s process was devoid of any opportunity to evaluate the credibility of the accuser who chose not to attend the hearing in person or remotely. The Second District Court of Appeal found that in cases “where the accused student faces a severe penalty and the school’s determination turns on the complaining witness’s credibility,” the fact-finding body should hear directly from the accuser. The court also determined that the accused should have the opportunity to question the accuser, even if only indirectly—an opportunity, wrote Justice Helen Bendix in Wednesday’s 29-page opinion, that did “not exist here.” The court made it clear that in a “he said/she said” case, it is essential that the panel is able to directly assess the credibility of the accuser. Alexander Coteof Scheper Kim & Harris in Los Angeles, who represents John Doe said he was “grateful” that the court accepted his client’s arguments about how finders of fact should handle cases “where credibility is the key issue.” “I think this opinion gives a lot of guidance to schools going forward so they’re fair to everybody, both for the accused and the accuser.”

CMC/Doe Oral Arguments  By KC Johnson

 

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