DUE Process Rights

Articles relating to due process rights for our College boys

LAWSUIT: Male Sues Virginia Tech for Discrimination & Violating Due Process Rights

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LAWSUIT: Male Sues Virginia Tech for Discrimination & Violating Due Process Rights

James Doe claims he was unfairly expelled from Virginia Polytechnic Institute for consensual sex. Now he is is suing VA Tech and five employees for gender-based discrimination in violation of TitleIX, and violations of his rights under the due process and equal protection. Before heading to court,  James Doe appealed VA Tech’s finding of responsibility and sanctions against him.  In his appeal, Doe ’emphasized the numerous due process violations that occurred during the investigation and at the hearing, and provided new evidence to further clear his name. He argued that the sanction was unduly harsh in comparison to similar complaints heard by the Student Conduct Council.’  But when Doe was informed in July 2016, that ‘there was insufficient cause to reverse the decision made by the hearing officers’ Doe took action. He hired lawyers and is now suing VA Tech.

Per Doe’s July 2018 court filing: “Virginia Tech treats male students accused of sexual misconduct by female students more aggressively than it otherwise would…Virginia Tech has engaged in a pattern of unfair investigations and adjudications resulting in serious sanctions being imposed on male students, while not making comparable efforts with respect to allegation of sexual violence and abusive conduct made against female students. The decision erroneously finding Mr. Doe responsible for the alleged sexual misconduct, was motivated by gender bias against accused male students.”

James Doe v. VA Tech 

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DUE PROCESS RULING: Judge Questions UMiss Sex Assault Training. Accused Male Claim of Discrimination Upheld.

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DUE PROCESS RULING: Judge Questions UMiss Sex Assault Training. Accused Male Claim of Discrimination Upheld.

Schools keep the materials they use to train investigators who handle accusations of Title IX sex assault and harassment under lock and key. Attorneys have been trying to get these materials for years, with limited success.Now a judge has questioned training after materials were released to a male student at the University of Mississippi who was expelled for allegedly sexually assaulting a female student. Judge Jordan questioned the training that investigators received and how it influenced their decision against John Doe. John had quoted the training materials in his lawsuit, specifically, sections that advised a “lack of protest or resistance does not constitute consent, nor does silence”; that “victims … lie about anything that casts doubt on their account of the event,” including withholding facts and questioning their own victimhood; and suggests that such lies should be considered a side effect of an assault. “Taken as a whole, the Court concludes that Doe has stated a plausible claim,” Jordan wrote in his 23-page opinion. “This is a he-said/she-said case, yet there seems to have been an assumption under [UMiss Title IX Coordinator Honey] Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered.” This, along with other distressing evidence, allowed Jordan to uphold John’s claims that he was discriminated against based on his gender.

dailywire.com By Ashe Schow

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RULING: CAL POLY had no ‘Substantial Evidence’ to Judge Male Title IX Guilty

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RULING: CAL POLY had no ‘Substantial Evidence’ to Judge Male Title IX Guilty

Judges who rule in favor of accused students in Title IX cases will sometimes order their colleges to give them a new, fair hearing. Los Angeles Superior Court Judge James Chalfant didn’t think California Polytechnic State University-San Luis Obispo should get that chance. He ordered the Cal State University system and Chancellor Timothy White to simply “set aside” its findings against “John Doe” and not try him again. It’s the second time in a few months that Chalfant has overturned an expulsion in a Title IX case… The Cal Poly proceeding was unfair to Doe in practically every respect, hiding evidence and refusing to let him “examine” witnesses against him…Like other due-process lawsuits against universities, Doe’s accuser did not formally report the incident and refused to participate in the investigation. Judge Chalfant said the notice of charges the university gave Doe “does not pass muster from a due process perspective.” It didn’t identify what part of the school policy he allegedly violated, the nature of the misconduct, definitions of key terms or even the university’s “theories of responsibility for him.” Because Roe refused to participate in the proceeding, Doe was not allowed to question her even indirectly about what motive she might have to claim he assaulted her. Chalfant notes that one witness said Roe’s boyfriend was out of town during the incident: ‘Petitioner should have had an opportunity to question Roe about whether she had made up a story for her friends, but then refused to participate in the Title IX investigation out of concern that her boyfriend may learn of her infidelity.’ Because the university failed to show “substantial evidence of misconduct,” rather than simply failing to “follow fair procedure,” it is not permitted to try Doe again under state law, the judge said. He ordered the university to not only set aside the expulsion and sanctions but “take such further action as is consistent with [Doe’s] status of a student.”

thecollegefix.com By Autumn Berend

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CASE DISMISSED in Colorado. A Due Process Win for Male Exchange Student.

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CASE DISMISSED in Colorado. A Due Process Win for Male Exchange Student.

The sexual assault case against a former University of Colorado exchange student from Italy has been dismissed by prosecutors. The Boulder County District Attorney’s Office moved to dismiss one count of sexual assault against Giroloma Messeri, 20, and Boulder District Judge granted the dismissal.  “After extensive investigation, thorough review of the case, and in consideration of the people’s burden of proof, it is the people’s position that there is no reasonable likelihood of conviction at trial,” the prosection’s motion read. “Mr. Messeri is grateful that wisdom and justice prevailed in this extremely serious false claim against him,” defense attorney Jason Savela said in a statement. “He has always maintained his innocence and cooperated with the investigation.” “The complete truth did not get as much public attention as the portions that were released to the press over a year ago,” Savela said in his statement. “The complaining witness was never scrutinized by the prosecution prior to Mr. Messeri’s arrest, despite the most powerful evidence being in their files…Counsel’s review suggests a motive to harm Mr. Messeri for a perceived slight, rather than a crime. Other things do not add up.”

dailycamera.com By Mitchell Byars

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GOOD RULING: Appeals Court Declines to Expand Universities’ Obligations Under TitleIX

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GOOD RULING: Appeals Court Declines to Expand Universities’ Obligations Under TitleIX

Recently, the U.S. Court of Appeals for the First Circuit ruled that a Providence College student did not have a Title IX claim against Brown University, even though she was allegedly raped by Brown students on Brown’s campus. Jane Doe sought relief under a novel legal theory that would have dramatically expanded universities’ already-significant obligations under Title IX. For the most part, alleged Title IX violations are matters to be resolved administratively between the university and the Department of Education’s Office for Civil Rights, which enforces Title IX at recipient institutions. The U.S. Supreme Court has held, however, that in some circumstances, an individual who has suffered student-on-student harassment covered by Title IX may be able to sue a university for damages. That’s what Jane Doe did. The question facing the First Circuit in this case, Doe v. Brown:  Does someone who was not seeking access to a university’s educational opportunities or benefits – that is, a non-student – still have the right to recover damages under Title IX if he or she was sexually assaulted at that university? Jane Doe, a Providence College student, alleged that she was raped by three members of Brown’s football team. Brown informed Doe that she could file a complaint against the students under Brown’s student conduct code, but did not offer her recourse through the university’s Title IX process. Doe filed a complaint with the Department of Education’s Office for Civil Rights. Doe also filed a lawsuit against Brown. She alleged that she had withdrawn from Providence College for fear of seeing her assailants in the Providence area — a fear that, she alleged, resulted from Brown’s inaction. This, she argued, had the effect of denying her access to educational opportunities and benefits in violation of Title IX. In September 2017, a federal district judge dismissed Doe’s lawsuit, holding that as a non-student with no connection to Brown’s educational programs and opportunities, Doe did not have a Title IX claim against Brown. Doe appealed that ruling to the U.S. Court of Appeals for the First Circuit, which last week upheld the dismissal of her case. The court held that an individual cannot bring a Title IX claim alleging “discrimination under” a university’s educational programs or activities unless they are “participating, or at least attempting to participate, in education programs or activities provided by the defendant institution.” Because the primary mission of a university is to be an educational institution, not a court, expanding the role of universities in adjudicating sexual misconduct claims would almost certainly have harmed both due process and the ability of universities to fulfill their educational missions.

thefire.org By Samantha Harris

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BAD RULING in Illinois. Judge Blesses Campus Kangaroo Courts

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BAD RULING in Illinois. Judge Blesses Campus Kangaroo Courts

If you’ve ever signed up for a service on the internet or downloaded an app, you’ve probably seen a check box asking you to confirm that you’ve read the terms of service.  Colleges have a similar version of terms of service: student conduct codes and other policies that govern the responsibilities and obligations of colleges and their students…A federal judge in Illinois dismissed a student’s due-process lawsuit against the University of Illinois at Urbana-Champaign, saying he admitted he never read the student code on its website before enrolling. As with many contracts that consumers don’t read carefully, this “NO CONTACT” provision was not obvious enough for Doe to immediately notice it. If Doe had read and understood school policies on its website before enrolling – again, unlikely without a lawyer – he would have learned that the university has a different sexual-misconduct standard than the state of Illinois and it doesn’t do live hearings in Title IX cases…The judge expressed exasperation with the University of Illinois as well, writing in a lengthy footnote that this was a “close decision” and reminded the University of Illinois that it’s likely in violation of 7th Circuit precedent by denying accusing and accused students a “meaningful opportunity to be heard“.

thecollegefix.com By Piper  & Thanks to KC for tweet

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WIN! For Chinese National John Doe. Judge Stops UCLA From Potential Deportation

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WIN! For Chinese National John Doe. Judge Stops UCLA From Potential Deportation

It’s a familiar TitleIX anti-male story, except in this chapter, John Doe is a Chinese national Ph.D. Chemistry/Biochemistry student attending UCLA on an F-1 student visa, who supported his girlfriend and her family’s lifestyle, with lavish gifts and a great deal of money. There was a moment of love between them when John proposed marriage and Jane accepted. But alas, Jane was weak, and had been cheating on John throughout their relationship. When John found out, he ended their engagement…You can guess what happened next… Yep, Jane called the police and claimed John pushed her. And though Jane did not attend UCLA, the UCLA Title IX Coordinator Jessica Price got involved and discussed with Jane her options. Jane came up with 13 instances of misconduct against John. The UCLA TitleIX investigator uses the false science of trauma informed techniques, which highlights the accuser’s allegations, and disregards all contrary and exculpatory evidence. It’s not a surprise that John was railroaded, found guilty, and suspended for two years from UCLA.  According to court documents, ‘the suspension is essentially a de facto expulsion because of Doe’s F-1 visa status.’ The silver lining is that little John Doe fought against the powerful forces of UCLA’S TitleIX kangaroo court, and won. In a real court with DUE PROCESS, Doe’s lawyers stated that ‘if a stay is not imposed, Doe contends that he will suffer irreparable harm academically because he will be separated from his academic programs, professors, mentors, and contacts… In May 2018, a decision from Judge Chalfant came: ‘The motion for a stay of the Regents’ decision is granted’  UCLA Stay Decision 

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JUDGE RULES. Expulsion is Reversed. Cal Poly Chancellor Failed to Give Doe Due Process.

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JUDGE RULES. Expulsion is Reversed. Cal Poly Chancellor Failed to Give Doe Due Process.

On July 12, 2018, Superior Court Judge James C. Chalfant ordered California State University Chancellor Timothy P. White to set aside his improper expulsion of an accused student in a faulty Title IX investigation conducted at Cal Poly, San Luis Obispo under the executive orders issued by Chancellor White in June 2015. The court found that Chancellor White and the university’s Title IX personnel failed to afford the accused student Due Process, failed to provide adequate notice of the charges, failed to disclose all the evidence, failed to provide an opportunity to question witnesses directly or indirectly where witness credibility was an issue, and failed to present substantial evidence to support their decision that John Doe had violated Cal Poly’s Title IX misconduct policy. John Doe was a graduating senior with two credits left to complete his bachelor’s degree when Chancellor White and the university ordered him expelled.

In March 2016 the university charged John Doe on its own behalf because Jane Roe would not file a formal complaint and refused to participate in the investigation. The allegations came to the attention of Cal Poly’s Title IX office after Jane Roe and her roommate met with a resident advisor about an incident at a fraternity dance the previous night. In a meeting with the resident advisor, Jane Roe read from a text she had written about the alleged assault, but she never provided the actual text and the Cal Poly Title IX investigators never spoke to Jane Roe.

On June 7, 2016, three weeks before the investigation process was completed, Cal Poly Title IX Coordinator Brian Gnandt wrote to John Doe that Title IX investigators Stephanie Jarrett and Tera Bisbee were still “finalizing the report, which substantiates your violation of CSU Executive Order 1097,” indicating that Mr. Gnandt had already made his decision against the student. On July 28, 2016, Cal Poly Title IX Coordinator Brian Gnandt wrote again, stating his opinion that “based upon the preponderance of the evidence, the University has found sufficient evidence of a violation of Executive Order 1097.” John Doe appealed the decision to the Office of the Chancellor. Although Chancellor White denied John Doe’s appeal, Judge Chalfant found that Chancellor White’s Special Consultant for the appeal, attorney Marcie Gardner, reached false and mistaken conclusions regarding the evidence, and improperly considered evidence that was never provided to John Doe.

On December 9, 2016, Cal Poly Sanctions Hearing Officer Joy Pedersen recommended that John Doe be sanctioned to expulsion, which was approved by Keith Humphrey, Cal Poly Vice President for Student Affairs. John Doe appealed the expulsion sanction decision to the Chancellor, arguing that evidence was not disclosed to him, that he was not offered a fair opportunity to be heard, and that expulsion when he was about to graduate was unreasonable and contrary to the purpose of the Title IX policy to ensure that students are not deprived of access to educational programs and activities. On January 18, 2017, Pamela Thomason, CSU Systemwide Title IX Compliance Officer denied John Doe’s appeal, finding that no prejudicial procedural errors occurred and that the expulsion was reasonable.

Judge Chalfant disagreed with the Chancellor and in addition to ordering Chancellor White to reverse John Doe’s expulsion, Judge Chalfant directed the university “to take such further action as is consistent with his status of a student at SLO.”

COURT Notice of Order  John Doe-Cal Poly Article by Ashe Schow

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BIG WIN. Court Issues Injunction Against Ohio State in Student Due Process Case

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BIG WIN. Court Issues Injunction Against Ohio State in Student Due Process Case

A federal judge in Columbus, Ohio has issued an injunction preventing the school from disciplining students who did not have the right to cross-examine their accusers. Ohio State University tried to expel an accused female student for engaging in an allegedly nonconsensual sexual activity with other students on two separate instances.  In one of the school hearings, the accusers did not appear and the hearing panel relied on their written statements.  In another hearing, the accuser appeared but claimed to have no memory of the incident, so the panel relied on written statements from witnesses. The accused student represented by Engel & Martin, LLC,  sued, alleging that Ohio State had acted against the right of students to cross-examine their accusers in serious discipline cases.  The school argued that the investigatory process was sufficient.  But the judge agreed with the student, and issued a preliminary injunction. “The more interesting and consequential decision may be this unreported decision concerning Ohio State-holding that ALL adverse witnesses must be available for cross examination, not just the complainant.” Roe’s attorney, Joshua Engel

engelandmartin.com   Read Decision

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