GOOD News, Case Dismissed

Charges Dropped, Cleared by TIX, and Legislation supporting due process investigations

MORE GREAT NEWS! Federal Judge Refuses To Block Campus TitleIX News Regs

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MORE GREAT NEWS! Federal Judge Refuses To Block Campus TitleIX News Regs

A federal judge allowed the Education Department to move forward with new rules governing how schools and universities respond to complaints of sexual assault. In a suit challenging the rules, attorneys general from 17 states and the District of Columbia argued that the policy would block schools from investigating certain sexual abuse complaints and would discourage students from reporting assaults.

But US District Judge Carl. J. Nichols rejected those arguments, and wrote:

Seventeen states and the District of Columbia filed this suit challenging the U.S.Department of Education’s final rule addressing Title IX obligations, which was published in the Federal Register on May 19, 2020, and is scheduled to take effect on August 14, 2020. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020) (to be codified at 34 C.F.R pt. 106) (the “Final Rule” or “Rule”). Plaintiffs later moved for a preliminary injunction enjoining implementation of the Rule or, in the alternative, for a stay of its effective date pending judicial review. Although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation. For those reasons, discussed below, the Court denies Plaintiffs’ Motion.

Education Secretary Betsy DeVos said the ruling is “yet another victory for students and reaffirms that students’ rights under Title IX go hand in hand with basic American principles of fairness and due process.”

nypost.com-AP

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GREAT NEWS! JUDGE Refuses To Halt TitleIX Regs. It Can Benefit Both Accusers & Accused.

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GREAT NEWS! JUDGE Refuses To Halt TitleIX Regs. It Can Benefit Both Accusers & Accused.

If you’re going to challenge an agency regulation, you’d better show how it violates legal precedents. New York City’s board of education and the state of New York failed miserably in that regard, not even coming close to persuading a federal judge to either halt or push back the Friday effective date of the Department of Education’s Title IX regulation on campus sexual misconduct proceedings.

In a 46-page opinion Sunday, Judge John Koeltl said the plaintiffs overreached in arguing the regulation was “arbitrary and capricious” in violation of the Administrative Procedure Act, which governs federal rulemakings.

The judge notes it took until the Trump administration for the federal government to actually define sexual harassment as “unlawful sex discrimination under Title IX” in regulation, as opposed to facially nonbinding guidance. That was the format chosen by the Obama administration, and as a result, easily junked by its successor. Education Secretary Betsy DeVos gave educational institutions nearly three times longer to prepare than the APA requires – 87 days, putting the effective date in late summer and considering competing burdens from COVID-19, Koeltl notes.

Criticism that accused students get preferential treatment in the regulation is contradicted by the department’s confirmation that it lets “either party equally” challenge a finding “on the basis of procedural irregularity,” the judge said. He noted the department received public comments relaying “personal experiences” with discriminatory application of grievance procedures toward both accusers and accused.

thecollegefix.com– Greg Piper

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JUDGE Approves Title IX, Due Process Claims By Accused Male Against University of Iowa

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JUDGE Approves Title IX, Due Process Claims By Accused Male Against University of Iowa

A federal judge cited potential anti-male bias in the University of Iowa’s Title IX training, and its omission of exculpatory evidence in a Title IX proceeding, in refusing to dismiss a lawsuit by an expelled student.

U.S. District Judge Rebecca Goodgame Ebinger, who has ruled against other Iowa universities in two similar lawsuits, also said defendant officials have no right to “quasi-judicial immunity” for their actions in the proceeding.

The university provided “no support” for its claim that Title IX officials in higher education need such immunity because they are “frequently sued” by participants in sexual misconduct proceedings. It also did not explain how such suits prevent officials from doing their jobs “in a forthright manner,” she wrote in an order last month.

According to John’s account, university officials went beyond simply finding him responsible for sexual assault after a Title IX proceeding. Compliance officer Constance Schriver Cervantes in the Office of Equal Opportunity and Diversity banned him from campus before he even got a hearing, an interim sanction that was “discriminatory, objectively unreasonable, arbitrary, and capricious.” Tiffini Stevenson Earl, another compliance officer, “discounted and withheld” exculpatory evidence.

Judge Ebinger was particularly dismissive of the university’s argument that its officials deserve “absolute immunity,” a shield against accountability that not even “high school administrators” enjoy under a 45-year-old Supreme Court precedent. Title IX proceedings are nothing like those overseen by “federal administrative law judges” and more like those overseen by a “federal prison’s discipline committee,” where the members are prison employees and the proceedings lack common procedural safeguards, the judge wrote.

Ebinger allowed Title IX and due process claims by “John Doe” to continue while dismissing other claims, including racial discrimination. The lawsuit describes him as a “citizen of a predominantly Muslim South-Asian country” who was born and raised in Kuwait. His two accusers are white women.

thecollegefix.com-Greg Piper

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BLUE State AGs Want To Limit College Students’ Due Process Rights. Red State AGs Are Fighting Back.

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BLUE State AGs Want To Limit College Students’ Due Process Rights. Red State AGs Are Fighting Back.

In June a group of 18 Blue State attorneys general filed a lawsuit against U.S. Department of Education Secretary Betsy DeVos to try and block new regulations that would provide much needed due process to college students accused of sexual assault.

In July a coalition of Red State attorneys general filed a brief defending the new regulations.  The attorneys general from 14 other states (Amici States) filed an amicus brief to defend the regulations. The new rule, the AGs wrote, “requires educational institutions to investigate and, where proved, punish allegations of sufficiently severe, pervasive, and objectively offensive sexual harassment. It also provides a needed framework, consistent with long-standing Supreme Court precedent, that protects the foundational constitutional rights of due process and speech.” In their brief, the AGs make three arguments in defense of the new regulations.

First, the Amici States argue that the new regulations “set forth reasonable standards for combating gender discrimination in educational programs while safeguarding free speech and due process.” In support of this assertion, the Amici States emphasize that the new regulations track United States Supreme Court precedent set forth in Davis v. Monroe County Board of Education and follow the direction of the numerous courts that have repeatedly struck down unconstitutionally overbroad anti-harassment policies.

The Amici States’ second argument asserts, “Plaintiffs’ conscious failure to comply with Title IX and the constitutional norms—not the Final Rule—caused their alleged injuries.” In their lawsuit, the Plaintiffs claim that the regulations will cause them irreparable harm, especially if they go into effect as scheduled on August 14. The Plaintiffs are, in essence, arguing that the deadline is too short.  The Amici States, however, powerfully point out that most of the protections provided in the regulations are “already required by the Constitution and recognized by the courts.” Indeed, there have been hundreds of lawsuits challenging the fundamental fairness of campus Title IX proceedings and courts in many of the Plaintiffs’ jurisdictions have questioned the sufficiency of the protections afforded by campus policies.

The final argument advanced by the Amici States is that “[s]tudents will suffer severe and irreparable harm from an injunction delaying the Final Rule.” Yet every day that the new regulations are not yet in effect is a day that institutions across the country will continue to irreparably harm students by denying them these basic procedural protections. The brief explains why the new regulations are so urgently needed and why issuing the injunction the Plaintiffs are requesting would be so harmful: The absence of meaningful safeguards in current disciplinary schemes means that academic institutions can and have imposed life-altering consequences on students without ever giving them a real opportunity to defend themselves.

Finally, the opening of the Amici States’ brief eloquently argues the merits of the new regulations’ approach. The brief persuasively articulates the appropriateness of the new regulation’s balance—an approach that doesn’t champion the rights of one side over the other, but instead provides a framework where sexual misconduct can be effectively addressed within constitutional boundaries. thefire.org-Joe Cohn  dailywire.com-Ashe Schow

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GOOD NEWS. Judge Dismisses Suit Stemming From 2005 Dartmouth Encounter

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GOOD NEWS. Judge Dismisses Suit Stemming From 2005 Dartmouth Encounter

A federal judge has dismissed a lawsuit filed by a former Dartmouth College student stemming from a drunken encounter 15 years ago she has asserted turned into a sexual assault. The other party in the case, who was a Tuck School of Business student at the time, says they had consensual sex and has filed a countersuit.

In the lawsuit in U.S. District Court in New York, Monica Morrison asked the court for a ruling that would protect her from future defamation claims if she ever spoke publicly about the May 2005 incident, saying the ability to speak about it constitutes a First Amendment right. Morrison, who was a 19-year-old sophomore at the time, said she was drunk during the encounter and that Robert Langrick, was a 29-year-old Tuck student. The pair met at a Dartmouth fraternity party, and Langrick contends that he too had been drinking and that they had consensual intercourse that night in a group house belonging to an undergraduate society where Morrison was living at the time.

Hanover police investigated the incident and never charged Langrick with any sex crime. Langrick argued in a motion this spring that Morrison’s lawsuit sought “hypothetical advisory opinions” that the judge could not issue. In the order filed July 9, Judge Carol Bagley Amon sided with Langrick, saying that the court does not have “subject jurisdiction” to rule on hypothetical situations. She dismissed the claims with prejudice, meaning Morrison cannot file them again. Langrick’s attorney, Andrew Phillips, said that “these claims were meritless from the outset and brought solely in an attempt to garner publicity.” vnews.com-A.Merriman

For Background Read: Complicated Lawsuit. If You Drink, & Have Consent Sex, A MeToo Activist Could Ruin You 14 Years Later Claiming Regret Rape.

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SETTLEMENT: Purdue Files Settlement Notice In Federal Suit Over Sex Assault Case

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SETTLEMENT: Purdue Files Settlement Notice In Federal Suit Over Sex Assault Case

Purdue has reached a settlement with a former student-athlete more than a year after he first filed a discrimination lawsuit against the University. Former football player Brandon Roberts was expelled in 2017 when he was [falsely] accused of sex assault, by a white female student. Court documents state that the allegations and his subsequent expulsion “dealt a serious blow” to Roberts’ hope to play professional football.

The Tippecanoe County prosecutor’s office did not press charges against Roberts. Roberts appealed Purdue’s internal investigation, as he was not provided with police recordings of relevant interviews or a full copy of the investigative report.

Roberts later filed a discrimination lawsuit, alleging that he was denied due process and discriminated against because he’s a black man accused of sexual assault by a white woman. The lawsuit alleges that the University’s investigation was “preordained” by Roberts’ race.

Roberts’ counsel has no objection to Purdue’s filing.

purdueexponent.org

 

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TRUMP Overhaul of Campus Sex Assault Rules Wins Surprising Support: Feminist Legal Scholars

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TRUMP Overhaul of Campus Sex Assault Rules Wins Surprising Support: Feminist Legal Scholars

The new approach finds unlikely allies among some feminist scholars, who say colleges and universities were failing to sufficiently protect the rights of young men accused of sexual misconduct.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct. The move set off a liberal uproar, denounced by unions representing teachers and college professors, by the National Organization for Women and by an array of Democratic senators. The Trump rules, they said, constitute a radical rollback of protections for victims who seek justice after sexual assaults.

But Ms. DeVos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?”

There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent.

nytimes.com– Michael Powell

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GOOD NEWS: 7th Circuit’s Purdue Ruling Impacting Other Title IX Lawsuits

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GOOD NEWS: 7th Circuit’s Purdue Ruling Impacting Other Title IX Lawsuits

The case against Purdue University brought by a male student who was expelled and lost his Navy ROTC scholarship after the school determined he had sexually assaulted a female student has survived a second motion to dismiss. John Doe, the male student filed the lawsuit in 2017. He claimed Purdue violated his due process rights under the 14th Amendment and violated Title IX of the Education Amendments of 1972 by reaching the “erroneous outcome,” solely because of his gender, that he had sexually assaulted his former girlfriend.

Along with Purdue University, the plaintiff included Purdue President Mitch Daniels, vice president of ethics and compliance Alysa Christmas Rollock, dean of students Katherine Sermersheim and the Purdue board of trustees as defendants. They successfully petitioned for the case to be dismissed, but the decision from the U.S. District Court for the Northern District of Indiana was overturned in June 2019 by the 7th Circuit Court of Appeals. In its ruling in John Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), the Chicago appellate court rejected the formulas other circuit courts used to evaluate Title IX claims and offered its own method.

The 7th Circuit’s opinion helped Doe overcome the motion to dismiss on remand and has enabled another male student, also identified as John Doe, to keep his own lawsuit alive against Purdue. In addition, a May 29 opinion from the 3rd Circuit Court of Appeals used the 7th Circuit’s evaluation process in a similar Title IX lawsuit lodged by a male student. This is the first appellate court to adopt the Chicago panel’s method, according to Brooklyn College history professor KC Johnson, who has studied and tracked Title IX lawsuits filed against institutions of higher education.

In using the 7th Circuit’s “straightforward pleading standard,” the 3rd Circuit panel said the standard “hews most closely to the test of Title IX.” Doe’s case was the first such Title IX lawsuit to reach the 7th Circuit. Complaints have been filed against colleges and universities across the United States primarily by male students claiming their schools found them guilty of sexual misconduct without giving them any chance to review the evidence or rebut the witnesses.

theindianalawyer.com-Marilyn Odendahl

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SHE ACCUSED Him Of Sex Assault But Stopped Participating After Being Told Her Claims Would Be Challenged

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SHE ACCUSED Him Of Sex Assault But Stopped Participating After Being Told Her Claims Would Be Challenged

A female student at the University of Michigan who accused a male student of sexual assault backed out of her claims after a judge ruled the accused student would be allowed to cross-examine his accuser. The judge ordered UM to provide the accused student a “live hearing” and the ability to cross-examine his accuser. UM appealed the ruling to the 6th U.S. Circuit Court of Appeals, but the accused student’s attorney, Deborah Gordon, filed a motion recently saying the appeal was moot because UM dropped the Title IX charges against her client.

UM tried to claim in court that John Doe was responsible for the case’s ongoing adjudication, saying the accuser had waited two years while John “and the district court prevent the University from completing its investigation into her allegations of rape and from conducting a hearing,” and tried to claim that Jane dropping out of the “fitful process” should serve as a reason for courts to stay out of “an ongoing process.”

Gordon, John’s attorney, responded by saying UM was “solely responsible for the trajectory of these events,” and that John was the victim here, having his life disrupted and continuing to live with a “significant cloud over him.”

dailywire-Schow

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JURY AWARDS $100,000 To Male Who Boston College Punished For A Different Student’s Assault

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JURY AWARDS $100,000 To Male Who Boston College Punished For A Different Student’s Assault

Last month, a jury awarded former Boston College student John Doe $100,000 for how the college mishandled sexual assault allegations against him. The case, Doe v. Trustees of Boston College, is the first of its kind to reach a jury since 2011, when Obama-era rules began to govern campus sexual misconduct claims. It joins a long line of other such cases claiming that Title IX offices are breaking the law.

What Happened in the John Doe Case?

In court, Doe claimed the school ignored his claim that JK was the real offender. And the jury agreed, awarding Doe lost income for one year and a semester’s tuition.

Boston College Ignored Evidence and Due Process

Three aspects of Boston College’s malfeasance stand out. First, the college failed to observe basic due process, in particular by neglecting to take seriously exonerating evidence. Second, the porous Title IX processes at Boston College fail to protect against malicious or false accusations. Third, and the most significant is not legal but moral. Boston College appeared to have complete disregard, perhaps malicious disregard, for the wrongful treatment of one of its own innocent students.

Wrongful accusations, wrongful convictions, and wrongful incarcerations are among the most monstrous indictments of any legal system, since they represent the full power of the state used — abused — against an individual, who is by definition a weaker party. When deliberate abuse of power against the weak happens, it should be universally condemned and duly punished. In this case, Boston College appeared simply not to care about the truth.

Without a recognized, objective moral order, a justice system itself makes little sense, other than as a show where the powerful pretend to follow rules while railroading the little guy. Is that what Title IX has become?

thefederalist-T. Manning insidehighered-Bauer-Wolf

Original post 11/2019. Re-posted 4/2020

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